Flaws found in state consumer protection enforcement

Oct. 28, 2012

Updated Aug. 21, 2013 1:17 p.m.

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Patricia and Gerald Dawkins display a treasured high school photo of their daughter Katherine Dawkins. The Dawkins' daughter was 27 years old when she died after visiting Dr. John Choi of Irvine for wisdom teeth extraction in 2006. H. LORREN AU JR., THE ORANGE COUNTY REGISTER

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Gerald and Patricia Dawkins' said their daughter Katherine loved collecting angel figurines. She was 27 years old when she died while undergoing wisdom teeth extraction by Dr. John Choi of Irvine in 2006. In her memory, Katy's parents, family and friends have added to the collection. There are now 25 angels sitting on the family's fireplace mantel. H. LORREN AU JR., THE ORANGE COUNTY REGISTER

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Patricia and Gerald Dawkins hold a high school portrait of their daughter Katherine Dawkins. Behind them is a photo taken of "Katy" when she was 18 months old. The Dawkins' daughter, 27, died after visiting Dr. John Choi of Irvine for wisdom teeth extraction in 2006. H. LORREN AU JR., THE ORANGE COUNTY REGISTER

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Katherine Dawkins, known as Katy by those close to her, was a 7-year-old in this photo taken when the family resided in Downey. "She loved animals," says her mother Patricia Dawkins. COURTESY OF THE DAWKINS FAMILY

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Retired nurse Azella Hawkins of Los Angeles before a July 2003 surgery left her brain damaged due to oxygen shortage. Her anesthesiologist, Bryan Chan of Rancho Palos Verdes, was accused of repeated negligent acts, gross negligence and poor record keeping, which carried a minimum recommended penalty of five years of probation. He negotiated for a public reprimand and a series of classes. COURTESY OF WINNIE PERRY

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Azella Hawkins, left, with her daughter Winnie Perry, four years after Hawkins suffered brain damage from oxygen shortage following a July 2003 knee surgery. Hawkins' anesthesiologist, Bryan Chan, was accused of repeated negligent acts, gross negligence and poor record keeping, which carried a minimum recommended penalty of five years of probation. He negotiated for a public reprimand and a series of classes. COURTESY OF WINNIE PERRY

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Azella Hawkins, after a July 2003 surgery left her brain damaged from oxygen shortage. Her anesthesiologist, Bryan Chan, was accused of repeated negligent acts, gross negligence and poor record keeping, which carried a minimum recommended penalty of five years of probation. He negotiated for a public reprimand and a series of classes. COURTESY OF WINNIE PERRY

Patricia and Gerald Dawkins display a treasured high school photo of their daughter Katherine Dawkins. The Dawkins' daughter was 27 years old when she died after visiting Dr. John Choi of Irvine for wisdom teeth extraction in 2006. H. LORREN AU JR., THE ORANGE COUNTY REGISTER

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Sitting in the dentist’s waiting room, Patricia Dawkins didn’t suspect there was a problem until she saw the ambulance pull up, sirens blaring.

It was January 2006 and Patricia’s daughter, Katherine, was getting her wisdom teeth removed.

Just moments before, Katherine’s oral surgeon, John Choi of Irvine, had sedated her. But records show he didn’t address Katherine’s abnormally small jaw, which made her predisposed to complications under sedation and anesthesia.

Almost immediately, Katherine had trouble breathing, the records show. Two doses of medication would have fully reversed the sedation, but records suggest Choi gave her only a single dose. An incision in her throat would have let her breathe as well, but Choi didn’t do that either.

Instead, someone called 911, while Choi tried snaking a tube down her throat. It didn’t work. Neither did CPR.

Paramedics arrived a short time later, but they couldn’t save her. Nor could staff at the hospital. Katherine, age 27, was brain dead.

“Nobody said anything to me,” said Patricia Dawkins, who didn’t learn her daughter was in trouble until after the ambulance had pulled away from the back of the building. “I asked the girl at the desk, ‘Is something wrong?’ She just smiled.”

The Dental Board of California accused Choi of incompetence and repeated negligence. At the time, the board’s recommended minimum penalty for those charges was five years of probation and, “where appropriate,” 30 days’ suspension, remedial education and practice restrictions.

But the dentist didn’t get that. Despite “admitting responsibility,” in the words of his settlement, Choi bargained with the Dental Board and received three years of probation and remedial education without any restrictions on his practice. Choi continued seeing patients and administering anesthesia as though nothing had happened. He still has a license today.

Peter Osinoff, an attorney with the law firm that defended Choi, said he is a “fine dentist” who gave Katherine Dawkins anesthesia without incident three months before she died. Her death, he said, “was a unique event,” not a sign that Choi is dangerous.

That may be so. But the kind of bargain Choi struck is not unique.

An Orange County Register investigation has found that the state’s network of 36 consumer protection agencies has systemic flaws that may actually encourage lenient settlements and, ultimately, undermine public safety. A Register analysis of three years of enforcement proceedings found that three of the state’s key health care boards agreed to penalties below their own recommendations in dozens of cases where patients had been killed or permanently injured.

From July 2008 to June 2011, doctors negotiated settlements with the Medical Board of California in 62 of 76 cases in which patients had been killed or permanently injured. More than half of those 76 cases – 63 percent – were settled for penalties below the board’s own minimum recommendations. The state’s dental and osteopathic medical board accepted such settlements in about one out of three cases where patients died or suffered permanent harm.

Among the deals approved: A probation term two years below recommendations for a San Bernardino osteopath who sent a patient home to his death after misreading “grossly abnormal” EKG readings. No probation at all for a Rancho Palo Verdes anesthesiologist after one of his patients suffered severe brain damage. A public reprimand for a Costa Mesa cosmetic surgeon whose patient died following a liposuction procedure.

State officials defend these settlements as reasonable, and note that the law doesn’t require boards and bureaus to follow their own recommendations. They say the state’s consumer protection system works.

An unusually high legal standard that makes it more difficult to prove violations in California than in most other states.

A dramatic imbalance between what the state can spend for expert witnesses and what defense lawyers spend.

An institutional disconnection between board investigators and prosecutors at the Attorney General’s Office.

“It’s clear to me what you’ve shown here is flaws in the system that protect the public,” said David Swankin, a national expert on consumer protection boards at the Citizen Advocacy Center in Washington, D.C. “My God, somebody died here,” he said. “You can’t accept that.”

BURDEN OF PROOF

Whenever you go to your barber, pharmacist or therapist, a board under the California Department of Consumer Affairs regulates the exchange. The department and its boards and bureaus frequently touch the lives of Californians, yet they aren’t well known.

The department’s network of consumer protection agencies exists to ensure that the marketplace is staffed by competent, careful professionals in a variety of fields from acupuncture to engineering to physical therapy. The agencies seek to protect the public by establishing minimum qualifications for licensing, and by disciplining licensees who break the rules and harm consumers. Disciplinary cases are typically resolved in one of two ways, in a hearing before an administrative law judge or in a negotiated or stipulated settlement, which is like a plea bargain in a criminal case.

Department spokesman Russ Heimerich freely admits that the agencies settle the majority of their cases through negotiated settlements – but he says they don’t settle at nearly the rate of criminal or civil cases.

“When we do settle cases, we do so in part to speed justice and in part to save taxpayer dollars,” Heimerich said in a written statement. “In point of fact, we are often able to get licensees to settle because we possess the proof we need and are able to demonstrate it to the licensee.”

But other factors may also incentivize boards to seek negotiated settlements, say independent experts like Swankin of Citizens Advocacy Center. One issue: the high burden of proof that the attorney general’s lawyers must reach in order to prove violations by licensees.

Six boards and one bureau examined by the Register all require “clear and convincing evidence” in order to prove a violation. In legal terms, clear and convincing evidence is the second-highest burden of proof, behind only “beyond a reasonable doubt,” which is the standard used in criminal cases.

A September 2008 study by the Federation of State Medical Boards found that 38 state medical boards and 10 state osteopathic medical boards require only a “preponderance of the evidence” standard to prove a violation. Preponderance of the evidence, the standard used in most civil actions, is thought of as certainty level of 50 percent plus one.

In other words, it’s far easier to prove a violation before 48 other medical and osteopathic boards than it is before the boards in California. Under those circumstances, you can see why state officials might be open to bargaining – especially given that the boards have to pay the legal bills of a full hearing.

Heimerich, the department spokesman, said that the burden of proof standard for boards and bureaus was established by case law. The boards themselves have no control over it, he said. But at least one board chief says it’s a fair question to ask why the state has such a high standard.

The clear and convincing standard is too high, says Michael Carome, the deputy director of the Health Research Group at Public Citizen, a consumer advocacy organization in Washington, D.C., which annually ranks the rate of serious disciplinary actions by state medical boards. California ranked 28th in its latest report, in part, he said, because of California’s high burden of proof.

“We believe that the standard these boards should be using is preponderance of the evidence,” Carome said.

HIGH COST OF EXPERT WITNESSES

Another issue that experts say could be contributing to the high rate of stipulations is money. Some licensees, like those in the automotive repair or nursing industries, might not make enough to afford a good attorney or to see a disciplinary case through to a hearing. They have a strong incentive to ask for a settlement from the consumer affairs board and the Attorney General’s Office.

Many disciplinary cases involving medical professionals come down to whether the individuals performed in accordance with the prevailing “standard of care.” There is no static definition for standard of care. It’s a changing, evolving concept that can differ from year to year or state to state.

The only way for consumer affairs boards and attorney general lawyers to establish that a medical professional breached the prevailing standard of care is to take testimony from an expert witness – another health care provider. Likewise, the only way a defendant can establish that he didn’t break the standard is by putting forward his own expert witness.

The thing is, consumer affairs boards pay only $75 to $200 an hour for the services of an expert witness. Expert witnesses for the defense can receive as much as $1,000 per hour, defense attorneys say. It’s no surprise that the best expert witnesses generally work for defendants, not the boards, experts and defense attorneys say.

“There’s a vast disparity between what the Medical Board pays and what the going rate is,” said Los Angeles attorney Art Chenen, who serves as the president of the California Society for Healthcare Attorneys. “I think everybody would be better off if the Medical Board could afford to pay their experts more.”

TURF BATTLES

Julie D’Angelo Fellmeth is widely recognized as the top independent expert on California’s consumer protection boards, and for years she’s been trying to overhaul the system to better protect the public.

She works as the administrative director for the Center for Public Interest Law at the University of San Diego, which monitors operations at the boards and in 2003, she was appointed by the director of the Department of Consumer Affairs to serve as the Medical Board enforcement monitor, where she was charged with evaluating the agency’s disciplinary program and recommending changes.

One major, systematic issue that concerns Fellmeth is the relationship between the consumer protection boards and the lawyers in the Attorney General’s Office who prosecute their disciplinary cases. In Fellmeth’s ideal world, all cases involving “serious medical records” would be handled by lawyers who specialize in medical cases, and all lawyers who prosecute cases on behalf of the boards should work closely with board investigators from the moment an investigation is launched.

That’s not exactly how the system works today.

In 1990, Fellmeth persuaded the state to establish a special unit in the Attorney General’s Office to manage the disciplinary cases of health professionals. Before then, the AG’s lawyers didn’t specialize in the kind of consumer protection cases they handled, she said. A lawyer one day would handle a case involving a barber, the next a doctor. Fellmeth and others didn’t think this was a good idea because cases involving medical professionals are often maddeningly complex.

Hence the attorney general’s creation of a Health Quality Enforcement Section, where lawyers handle only medical cases. But Fellmeth said there’s “no rhyme nor reason” for which boards are handled by Health Quality Enforcement and which are handled by the Licensing Section, where AG lawyers don’t specialize.

The Medical Board is covered by Health Quality Enforcement. The state’s two nursing boards aren’t. The Board of Psychology and the osteopathic board are served by HQE. But the Dental Board isn’t. Neither is the Board of Pharmacy, the Board of Optometry, the Board of Occupational Therapy or the Board of Behavioral Sciences.

Fellmeth says disciplinary cases of nurses, dentists and all the other health professionals should be handled by the Health Quality Enforcement Section, but “turf battles” in the Attorney General’s Office have prevented changes. Attorney General spokesman Lynda Gledhill declined to comment.

VERTICAL ENFORCEMENT

Boards also have been resistant to implementing Fellmeth’s recommendation that investigators work with prosecutors from the beginning of a case. Generally, Fellmeth said, boards investigate allegations of wrongdoing by their licensees, then “hand off” the cases to the Attorney General’s Office for prosecution. This arrangement stands in sharp contrast to the way other law-enforcement agencies handle complex cases, with investigators and prosecutors working together from the moment the investigation begins, Fellmeth said. She calls this later model “vertical prosecution.”

Today, only the Medical Board and the Board of Podiatric Medicine regularly employ Fellmeth’s vertical enforcement model, although Heimerich, the department spokesman, says boards have the option of calling in lawyers before an investigation is complete and frequently do in complex cases.

Board officials, however, aren’t big fans of the concept. The California Osteopathic Medical Board of California, for example, once participated in the vertical prosecution program, but pulled out after a little more than a year because it was too expensive, said the board’s retiring executive director, Dr. Donald Krpan.

Vertical prosecution costs boards extra money because the Attorney General’s Office charges each board $170 an hour for their attorneys’ services. If the attorneys are working on cases longer, the boards have more bills.

“Each time (the attorney) talks to an investigator, they send us a bill,” Krpan said. “It’s probably twice as expensive using vertical prosecution.”

A 2010 evaluation of the Medical Board’s enforcement program by management consultants at Benjamin Frank LLC also found that investigations took “significantly longer to complete” under vertical prosecution. That’s a big problem for the department as stories in the Register and other publications over the past decade have documented how slow California’s consumer protection boards are to discipline licensees.

In recent years, the boards have come under intense pressure to resolve their cases quickly, to better protect the public.

Orange County Sen. Lou Correa, D-Santa Ana, said the Register’s latest analysis could indicate that the pendulum has now swung too far the other way: the boards are so focused on concluding cases quickly that they’re willing to accept penalties below their own recommendations.

“It sounds to me like these guys are just moving cases,” he said, adding, “We need to look at this.”

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